When Does Moving Abroad With Your Child Become Child Abduction?

Feb 16, 2018   ·   6 minute read
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The question of whether a mother’s decision to relocate from Australia to England with her two young children amounted to child abduction has been the subject of a Supreme Court ruling called Re C.

The Court decision is of interest as it highlights the fact that often the decision to move from one country to another with children isn’t straightforward and therefore it isn’t easy to say what amounts to ‘’child abduction’’ and when ‘’habitual residence’’ changes from the country of origin to the country of relocation.

In re C, two parents were living in Australia with their two children, the marriage ran into trouble and the father agreed that the British mother and the children (who had Australian citizenship) could take a trip to the UK for 8 weeks. The father then agreed, by email, that the trip could be extended to up to a year. During the year the mother decided that she wanted to remain in the UK with the two children. This decision resulted in the father applying under the Hague Convention for the children’s return to Australia.

The legal question was whether the children remained ‘’habitually resident’’ in Australia as, on the father’s case, their stay in England was only temporary. If the Court ruled that the children remained ‘’habitually resident’’ in Australia the Hague Convention rules would be applied and the children would go back to Australia .The long term decision as to which parent the children should live with and in what country would then be decided by the Australian family Court. The Australian Court would have the option to rule that the children should stay in Australia with their mother or father or grant an application by the mother to return to the UK with the children.

The mother resisted the father’s High Court application that the children should be returned to Australia arguing that the children were now habitually resident in the UK so the UK Court couldn’t apply the Hague Convention rules and summarily return the children to Australia for the Australian family Court to decide on the children’s future. The High Court agreed with the mother, the father appealed and the Court of Appeal agreed with the father ordering the children’s return to Australia. There was a further appeal to the Supreme Court. The Court held that the father’s application under the Hague Convention failed because the children had become ‘’habitually resident’’ in the UK and therefore the English Court could decide where the children’s future lay. Not all of the Supreme Court judges agreed with the leading judgment and a reading of the Court case and the various judge’s views shows just how finely balanced and complicated the decision was.

The decision on whether the children were habitually resident in Australia or England all came down to when the mother formed her intention to remain in the UK with the children. Was it a case of a mother who was struggling to decide what to do and where to live with her two young children or a case of planned child removal by tactically getting the husband to agree to a one year stay in England?

Why does the case matter? If the children had retained their habitual residence in Australia then under the Hague Convention the UK Court would have had to return the children to Australia using a quick summary procedure and without looking at the merits of either parent’s case namely that the children would be better off being brought up in Australia or the UK. Once back in Australia the mother might have found it harder to argue that the children should return to the UK with her.

However as the Court has ruled that the Hague Convention doesn’t apply the UK Court can now carefully decide what is in the children’s best interests: to live in England with their mother or return to Australia with their father and the sort of contact time they should spend with the parent who isn’t going to be caring for them on a day to day basis.

What does this case mean for a parent travelling with children to the UK? For the parent who has come over to the UK with their children it shows the depth of analysis of the legal concept of ‘’habitual residence’’ and the pouring over of detail and, in the case or Re C, the review of correspondence to try to determine when the children lost their habitual residence in Australia. Despite the Re C ruling many parents should be wary of the risks of arguing that their children have become habitually resident in England and thus the Convention doesn’t apply. That is because if the UK Court rules against them on the legal definition of habitual residence or on the facts of their case they start on ‘’the back foot’’ if they have to return to the country they departed from for that country to rule on their children’s long term future. The dilemma remains – do you apply for permission to take a child to live abroad in the country in which the child lives and risk Court failure or risk travelling abroad and the Court ruling that the child’s habitual residence remains the country of origin thus forcing a Hague Convention return and a more challenging Court application in the country of origin.

What does this case mean for a parent agreeing to their children going abroad with one parent for an extended period? It may mean that if the parent receives legal advice they will be less likely to agree to a child going abroad for an extended holiday as if their child is at risk of losing habitual residence the Hague Convention won’t apply thus making it a lot harder to recover children from abroad.

The dissenting Supreme Court judge’s views show just how difficult it is to define the concept of ‘’habitual residence’’ and how easy it is to fall foul of child abduction laws and conventions. As a child abduction lawyer the case of Re C shows just how finely balanced Court decisions can be and the importance of parents taking legal advice before they take their children abroad or agree to an extended trip abroad so that they make informed decisions.

For advice on any aspect of children or child abduction law please contact us.

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